161 U.S.

91
16 S.Ct. 493
40 L.Ed. 628

UNION PAC. RY. CO.

v.
CALLAGHAN.
No. 271.
March 2, 1896.

This was an action brought by James Callaghan against the Union Pacific
Railway Company in the circuit court of the United States for the district
of Colorado, to recover damages for injuries received by him through the
alleged negligence of defendant. The evidence tended to establish these
facts: On August 18, 1890, a repair train operated by defendant, consisting
of five flat cars, loaded with timber to be used in repairing bridges, three
box cars, and a coboose, in running from Trinidad to Trinchera went
through a defective bridge, and Callaghan, who was riding on the train,
was injured.
Heavy storms had prevailed during the preceding week, causing extensive
washouts and damages to the roadbed and bridges, so that none but repair
trains had passed over the line between Trinidad and Trinchera for three
days.
Callaghan was a section foreman on a branch railroad from Trinidad to
Sopris, and some time on August 17th he received orders from the
superintendent of the railway company to take all the men in his section,
and assist in repairing the line between Trinidad and Trinchera, and
accordingly went to Trinidad, where he was joined by some other section
foremen with their crews, all being under one De Remer, a contractor in
the employment of the company, who had been called in to assist in
repairing the road, but who had no control over the management of the
train, which was in charge of a conductor with an engineer and fireman.
The train left Trinidad about 5 p. m., Sunday, the 17th, pursuant to orders
received from the superintendent, then at Trinchera, and who had that day
examined the bridge which subsequently fell, but, so far as appeared, gave

no directions or warning to De Remer or the Trainmen in respect of its

condition. The train proceeded slowly during the night, De Remer and a
track walker going in front with a lantern, and before morning they found
one bridge washed out and another rendered dangerous by floods, and
repaired them. The bridge where the accident occurred was about half a
mile north of Trinchera, and three miles south of Adair, another station on
the road. The approaches at each end of it had been washed away for over
15 or 20 feet, so that it was unsafe. The foreman of that section discovered
its condition on the 17th, and caused the usual danger signal, a red flag, to
be placed along the road between the rails at about 700 feet north of the
bridge, and its condition was known to the road master as well as to the
superintendent before the train left Trinidad.
When the train reached Adair it was running about 15 miles an hour. The
section foreman was there, and signaled the train to stop for the purpose of
telling them about the bridge, and, if it had stopped, would have done so.
The engineer saw his signal, and commenced to stop, and had slowed up
to about four miles an hour, when the conductor signaled him to go ahead.
The train then went on without giving the section foreman any
opportunity to give information concerning the danger. The bridge could
be seen for about 900 feet north on the road, but the engineer apparently
neither saw its condition nor the red flag, but drove his train upon it, and
the car upon which Callaghan was riding went through.
At the conclusion of defendant's evidence, except reading the rules,
defendant asked the court to instruct the jury that there was no evidence
sufficient to warrant a verdict for plaintiff, which request was denied, and
defendant excepted. Defendant then introduced in evidence the company's
rule 227, which read as follows:
'In case of an extraordinary rainstorm or high water trains must be brought
to a stop, and a man sent out to examine bridges, trestles, culverts, and
other points liable to damage, before passing over. Conductors will make
careful inquiry at all stopping places, and, when thought advisable, make
extra stops to ascertain the extent and severity of storms, taking no risk. In
case of doubt as to the safety of proceeding, they will place their trains
upon a siding, and remain there until certain it is safe to proceed.'
Thereupon plaintiff offered and introduced evidence to show that there
was a conductor on the train. Defendant then asked the court to give to the
jury the following instructions:
'(1) The court is asked to instruct the jury that, under the evidence in this

case, the accident appears to have been caused by the failure of the
engineer of the work train to observe the rules and regulations of the
company in respect to running trains in cases of extraordinary floods, etc.,
and in his failure to observe the danger signal that, according to the
evidence, had been placed in places where he ought to have seen the same
in the exercise of the care that was required of him in respect thereto.
'(2) The court is asked to instruct the jury that they are not at liberty to
infer from the evidence in the case that the accident was caused by the
negligence of the conductor in signaling the engineer to proceed after the
train had slowed down, since such signal to the engineer in nowise
released the engineer from care in respect to observance of all precautions
necessary to prevent an accident under the circumstances, the evidence
showing that the engineer must have been aware of the likelihood of
danger at any place along the line.
'(3) The court is asked to instruct the jury that the mere fact that the
accident would not probably have happened if the conductor had allowed
the train to be brought to a stop at Adair affords no ground for saying that
not stopping the train at Adair was the cause of the accident, since it is
true that, if the train had not started from Trinidad or Adair, or run at all,
the accident would not have happened, and the mere fact of starting the
train, or continuing the train in motion after it had started, does not make
the running of the train under those circumstances the proximate cause of
the accident by which the plaintiff was injured.
'(4) The court is asked to instruct the jury that the jury are not at liberty to
infer, or even from the mere fact that the conductor gave signal to proceed
after the engineer had slowed up at Adair, was the proximate cause of the
injury to the plaintiff, since such signal to proceed can be held to proceed
in precisely the same manner as the engineer was bound to proceed under
the rules and regulations of the company under which he was acting, and
in view of what the engineer knew of the dangers he was bound to
apprehend from the floods, etc., that had existed for some days prior to the
accident; and that, even if the jury believe from the evidence it was
negligent in the conductor to proceed after he had slowed down, yet the
plaintiff will not be entitled to recover because of such negligence of the
conductor, unless they further believe from the evidence that such
negligence was the proximate cause of the injury.'
The record then states: 'But the court refused to give each and every of
said instructions, to which ruling of the court, the defendant, by its
counsel, then and there duly excepted.' The court thereupon charged the

jury at large upon the whole case. No exception was taken to any part of
the charge. The jury found for plaintiff, judgment was entered on the
verdict, the cause taken on error to the circuit court of appeals for the
Eighth circuit, and the judgment affirmed. 6 C. C. A. 205, 56 Fed. 988.
This writ of error was then allowed, and a supersedeas bond given and
approved, in which no penal sum was named. A motion to dismiss or
affirm was submitted. Callaghan subsequently died, and the cause was
revived in the name of Anna Callaghan, administratrix, etc.
C. S. Thomas and W. H. Bryant, for defendant in error.
John F. Dillon and John M. Thurston, for plaintiff in error.
Mr. Chief Justice FULLER, after stating the facts in the foregoing
language, delivered the opinion of the court.

We should not dismiss this writ of error on account of the defective character of
the bond, but allow a proper bond to be filed, if necessary, which, in this
instance, it is not, as the motion to affirm must be sustained.

It is settled that an exception to the refusal of the trial court to instruct the jury
to find for the defendant is waived if made by defendant without resting his
case. The question goes to the sufficiency of the evidence, and that is, of
course, of the entire evidence. Railroad Co. v. Hawthorne, 144 U. S. 202, 206,
12 Sup. Ct. 591. After defendant's motion for an instruction in its favor was
denied, it put in evidence its rule 227, which manifestly might have had an
important bearing. The motion was not renewed, and we think the action of the
court cannot be assigned for error.

Again, it is firmly established that where propositions submitted to a jury are

excepted to in mass, the exception will be overruled provided any of the
propositions be correct; and where a general exception is taken to the refusal of
a series of instructions it will not be considered if any one of the propositions is
unsound. Valley Co. v. Pace, 158 U. S. 36, 15 Sup. Ct. 743. It was contended
by defendant that the accident was the result of the engineer's negligence alone,
and that, therefore, plaintiff could not recover. In the light of the evidence, the
first instruction requested by defendant was properly refused, and, without
considering the others, the exception as taken to the ruling of the court must
fail. And no exception was saved to any of the instructions given by the court
on the whole case.

Judgment affirmed.

Judgment affirmed.